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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh ... Appellant(s) Versus

State of Haryana ... Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

1. The  appellant,  Prem Singh,  alongwith  six  others  was  

charged  for  various  offences  punishable  under  the  Indian  

Penal Code (IPC), 1860 and the Arms Act, 1959, including,  

the offence under Section 302 read with Section 149 IPC.  

Two  of  the  accused,  namely,  Satish  Kumar  and  Surinder,  

were  acquitted  even  prior  to  the  recording  of  their  

statements under Section 313 Code of Criminal  Procedure  

(Cr.P.C).  The remaining five accused, including the present  

appellant, were acquitted by the learned Trial Court at the  

conclusion of the trial by order dated 5.4.1997.  Aggrieved,  

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the State had filed an appeal before the High Court of Punjab  

& Haryana.  The High Court  by judgment and order  dated  

12.5.2008  reversed  the  acquittal  insofar  as  the  present  

appellant  Prem  Singh  and  another  accused,  i.e.,  Vishwa  

Bandhu is concerned.  Both the aforesaid accused persons  

were convicted under Section 302 read with Section 34 IPC  

and have been sentenced to undergo rigorous imprisonment  

for life.  The appeal of the State in respect of the remaining  

three  accused,  namely,  Daulat  Ram,  Ballu  and  Radhey  

Shyam was dismissed.  Aggrieved by his conviction and the  

sentence imposed, the appellant, Prem Singh, has filed the  

present appeal.

2. The  case  of  the  prosecution,  in  short,  is  that  on  

26.11.1993 at about 6.30/6.45 a.m. when PW-16 Sohan Lal  

was  present  in  his  house,  one  Vijay  Kumar,  a  neighbour,  

came and informed him that his elder brother Siri  Krishan  

who had gone for a morning walk has been shot at by some  

persons who had come in a Maruti car. On receipt of the said  

information  from  Vijay  Kumar,  who  claimed  to  have  

witnessed  the  occurrence,  PW-16  alongwith  his  nephew  

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Navneet Kumar went to the spot and found Siri Krishan lying  

in  a  pool  of  blood.  The  injured  was  removed  to  the  

government  hospital  at  Karnal  where  he  was  declared  

“brought dead”. According to the prosecution, on the basis  

of the information sent to the police by the doctor in the  

government hospital,  PW-24 SI Gurcharan Singh arrived in  

the hospital and recorded the statement of PW-16 Sohan Lal  

to  the  above  effect  (Exh.PQ).   On  the  basis  of  the  said  

statement  a  FIR  was  registered  which  was  investigated  

initially by PW-23 Inspector Om Prakash and thereafter by  

PW-24 SI  Gurucharan Singh and PW-27 Inspector  Gordhan  

Singh.  In  the  course  of  investigation  the  seven  accused  

persons including the appellant were arrested and recovery  

of  fire  arms  was  allegedly  effected  at  the  instance  of  

accused-appellant and co-accused Ballu.  From the place of  

occurrence several empty cartridges and lead bullets were  

recovered. 3 bullets were also recovered from the dead body  

in  the  course  of  the  post-mortem examination.  The same  

alongwith fire arms allegedly recovered at the instance of  

the  two  accused  were  sent  for  forensic  examination.  On  

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completion  of  the  investigation   the  accused  persons  

including the present appellant were chargesheeted and the  

case  was  committed  for  trial  to  the  Court  of  Sessions  at  

Karnal.  Charges under Sections 120-B, 148, 302 read with  

Section 149 of the Indian Penal Code and Section 25 of the  

Arms Act  were framed against the accused.  While the trial  

ended in the acquittal of all the accused persons the same  

has been reversed by the High Court in respect of the two  

accused persons, namely, Prem Singh and Vishwa Bandhu.  

Challenging the order of the High Court this appeal has been  

filed by accused-appellant Prem Singh.  

3. The  appeal  was  initially  heard  by  a  Bench  of  two  

Hon’ble Judges. However, there being a difference of opinion  

between  the  Hon’ble  Judges  the  matter  required  

consideration by a larger Bench.  This is how the appeal has  

come to be posted before us.   

4. We have heard Mr. D.B. Goswami learned counsel for  

the  appellant  and  Mr.  Suryanaryana  Singh,  learned  Addl.  

Advocate General for the State of Haryana.   

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5. Having regard to the fact that in the instant case the  

High  Court  had thought  it  proper  to  reverse  the  order  of  

acquittal  passed  by  the  learned  Trial  Court  it  will  be  

appropriate  to  notice,  though  very  briefly,  the  virtually  

settled  position  in  law  with  regard  to  the  power  of  the  

Appellate Court to reverse an order of acquittal passed by a  

Trial  Court.   In a recent decision in  Murugesan v. State  

Through Inspector of Police1  this Court had the occasion  

to consider the broad principles of law governing the power  

of the High Court under Section 378 of the Code of Criminal  

Procedure, 1973. The summary of the relevant principles of  

law set out in para 21 of the judgment may be extracted  

hereinunder:

“21. A  concise  statement  of  the  law  on  the  issue that had emerged after over half a century  of evolution since  Sheo Swarup2 is to be found in  para 42 of the Report in  Chandrappa v.  State of  Karnataka3. The same may, therefore, be usefully  noticed below:

“42.  From  the  above  decisions,  in  our  considered  view,  the  following  general  principles  regarding  powers  of  the  appellate  

1 (2012) 10 SCC 383 2 Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227 (2) 3 (2007) 4 SCC 415

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court while dealing with an appeal  against an  order of acquittal emerge:

(1)  An  appellate  court  has  full  power  to  review,  reappreciate  and  reconsider  the  evidence upon which the order  of  acquittal  is  founded.

(2)  The  Code  of  Criminal  Procedure,  1973  puts  no  limitation,  restriction  or  condition  on  exercise of such power and an appellate court  on  the  evidence  before  it  may  reach  its  own  conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial  and  compelling  reasons’,  ‘good  and  sufficient  grounds’, ‘very strong circumstances’, ‘distorted  conclusions’,  ‘glaring  mistakes’,  etc.  are  not  intended  to  curtail  extensive  powers  of  an  appellate court in an appeal against acquittal.  Such phraseologies are more in  the nature of  ‘flourishes  of  language’  to  emphasise  the  reluctance  of  an  appellate  court  to  interfere  with acquittal than to curtail  the power of the  court to review the evidence and to come to its  own conclusion.

(4) An appellate court, however, must bear in  mind that in case of acquittal, there is double  presumption  in  favour  of  the  accused.  Firstly,  the  presumption  of  innocence  is  available  to  him under the fundamental principle of criminal  jurisprudence  that  every  person  shall  be  presumed to  be innocent  unless  he is  proved  guilty  by a competent court of law.  Secondly,  the  accused having secured his  acquittal,  the  presumption  of  his  innocence  is  further  reinforced, reaffirmed and strengthened by the  trial court.

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(5) If two reasonable conclusions are possible   on  the  basis  of  the  evidence  on  record,  the   appellate court should not disturb the finding of   acquittal  recorded  by  the  trial   court.”(Emphasis supplied)

6. It is in the light of the above principles of law that the  

reasoning and conclusions of the High Court that will have to  

be analysed so as to determine the correctness of the view  

taken by the High Court in the present case.  To facilitate the  

aforesaid  exercise  the  manner  in  which  the  learned  Trial  

Court had arrived at its conclusions in the matter may be  

usefully noticed in the first instance.

7. Vijay Kumar, who according to PW-16 Sohan Lal, came  

and informed him about the incident was not examined by  

the prosecution. The above fact assumes significance in as  

much  as  from  the  statement  of  PW-16  recorded  in  the  

hospital  (Exh.PQ)  it  would  appear  that  Vijay  Kumar  had  

witnessed the occurrence. The learned Trial Court took note  

of  the  above  facts  and  also  that  the  statement  of  the  

aforesaid  Vijay  Kumar  was  recorded  by  the  Investigating  

Officer  only  on  28.3.1994  and  that  too  on  account  of  an  

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objection raised by the public prosecutor prior to the filing of  

the  chargesheet  (Challan)  before  the  Court.   The  public  

prosecutor had tried to justify the non-examination of Vijay  

Kumar by contending that  it  was not  Vijay Kumar but  his  

daughter who had witnessed the occurrence.   Considering  

the aforesaid  contention the learned Trial  Court  held  that  

even if  the same is  to be accepted the daughter  of  Vijay  

Kumar should have been examined as a witness.  However,  

the  evidence  of  Investigating  Officers  PW-23  Insp.  Om  

Prakash,  PW-24  SI  Gurcharan  Singh   and  PW-27  Insp.  

Gordhan Singh make it clear that none of the members of  

the family of Vijay Kumar were examined and no statement  

of any family member was recorded.   

8. The  learned  Trial  Court  came  to  the  conclusion  that  

there is ample room to doubt whether PW-11 Sohan Lal and  

PW-12 Bharat Lal, who were examined by the prosecution as  

eye witnesses, had actually witnessed the occurrence. Both  

the aforesaid two witnesses had come to Karnal (in Haryana)  

from Sunam in Punjab about two months prior to the incident  

and in the month of March, 1994 they had shifted back to  

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Sunam from where they had come. In this regard the Trial  

Court specifically noticed that both the witnesses were not  

able  to  give  any  specific  address  in  Karnal;  they  had not  

received any summons to appear as witnesses and had so  

appeared  at  the  request  of  the  son  of  the  deceased.  

Furthermore, PW-11 Sohan Lal claimed to be an employee of  

the brother of PW-13 Smt. Pushpa Devi who is the wife of the  

deceased.  Both PW-11 and PW-12 claimed that they knew  

the  deceased  from  before  and  that  the  house  of  the  

deceased was very near to the place of occurrence. Yet, PW-

11 and PW-12 did not go to the house of the deceased to  

inform the family members of the incident; neither did they  

report the incident to the police. Instead, they were roaming  

around aimlessly in the streets of Karnal until they came to  

the place of occurrence at 1.30 p.m. when their statements  

were recorded by the police.  The aforesaid facts, according  

to the learned Trial Court, cast a serious doubt with regard to  

the presence of PW-11 Sohan Lal and PW-12 Bharat Lal at  

the scene of the occurrence.  

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9. Furthermore, the learned Trial Court on the basis of the  

evidence  adduced  before  it  held  the  recovery  of  the  

weapons at the instance of the accused-appellant and co-

accused Ballu to be highly doubtful inasmuch as though the  

weapons were not concealed under the earth, no recovery  

was made from the spot on 21.09.1994; yet, on 22.1.1994  

and 23.1.1994 the two fire arms were recovered allegedly at  

the instance of the accused-appellant Prem Singh and co-

accused Ballu  respectively.   In  this  regard the Trial  Court  

also noticed that according to the report (Exh.PAK) of the  

Deputy Director, Forensic Science Laboratory, Madhuban no  

linkage could be established between the bullets recovered  

from the dead body and the fire arms allegedly recovered at  

the  instance  of  the  accused  both  of  which  were  sent  for  

forensic examination.   The learned Trial Court also noticed  

that PW-11 and PW-12 had identified the accused including  

the present appellant for the first time in Court.  It was also  

held that the refusal of the accused to cooperate and take  

part  in  the  test  identification  parade  could  not  be  held  

adversely against the accused on account of the fact that  

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even earlier to the proposed test identification parade the  

accused were shown to PWs 11 and 12 and also to the son of  

the deceased.   

10. In addition to the above,  the Trial  Court also noticed  

significant discrepancies in the evidence of PWs 11 and 12,  

particularly, with regard to the identity of the accused who  

had held the deceased while the two accused, i.e., accused-

appellant  Prem  Singh  and  co-accused  Vishwa  Bandhu  

allegedly fired at the deceased.  In this regard PW-11 in his  

evidence had named accused Bijender Singh alias Ballu as  

the person who held the deceased from behind whereas PW-

12 Bharat Lal had named accused Satish. The fact that the  

evidence of PWs 11 and 12 on the above aspect of the case  

is  belied by the evidence of PW-3 (Dr.  N.K.Bhandwal)  and  

PW-25 (Dr.  R.K.Kaushal)  had also been taken note by the  

learned Trial Court.  Both PWs 3 and 25 had stated that all  

the shots could not have been fired on the deceased if he  

had been held by a third person.  The above is the broad  

basis on which the order of acquittal passed by the learned  

Trial Court was founded.   

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11. The  parameters  within  which  the  High  Court  was  

required  to  exercise  its  powers  under  Section  378  of  the  

Code while  hearing the  State’s  appeal  have already been  

noticed.  If a conclusion with regard to the innocence of the  

accused is reasonably possible on the basis of the evidence  

and materials on record the High Court ought not to have  

disturbed the findings recorded by the Trial Court, even if, on  

a re-appreciation of the evidence, it was inclined to take a  

different view.  So long the view taken by the Trial Court was  

a possible view the exercise of the appellate power of the  

High  Court  under  Section  378  CrPC  would  remain  

circumscribed by the well settled parameters.   

12. In  the  present  case,  the  learned  Trial  Court  for  the  

reasons  noticed  came to  the  conclusion  that  the  accused  

before it should be acquitted.  An inference adverse to the  

prosecution  on  account  of  non-examination  of  the  person  

who could be the star witness for the prosecution, namely,  

Vijay Kumar; the inherent lacunae in the evidence of PWs 11  

and 12; the doubt and suspicion with regard to the bonafides  

of  the  recovery  of  the  fire  arms;  the  failure  of  the  

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prosecution to establish the linkage between the weapons  

recovered and the bullets extracted from the body of  the  

deceased are facts and conclusions that can be reasonably  

reached  on  the  basis  of  the  evidence  and  materials  on  

record.   If  the  aforesaid  conclusions  are  possible  to  be  

reached and we are inclined to so hold, the same cannot be  

characterized as unreasonable or perverse so as to justify  

the interference made by the High Court.

13. Furthermore, a reading of the order of the High Court  

indicates that the reversal made was entirely on the basis of  

the evidence tendered by PWs 11 and 12. The High Court  

seems  to  have  accepted  the  versions  narrated  by  the  

aforesaid  two  witnesses  without  considering  the  

shortcomings inherent therein which made their presence at  

the place of occurrence highly doubtful, facts that had been  

elaborately noted by the learned Trial Court in its order.  The  

mere claim of the prosecution that PW-11 Sohan Lal and PW-

12 Bharat Lal were eye witnesses to the occurrence could  

not  have  been  sufficient  for  the  High  Court  to  treat  the  

ocular  version  of  the  said  witnesses  as  the  undisputed  

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version of the occurrence. The High Court did not test the  

prosecution claim in the backdrop of the totality of the facts  

of  the  case.   Having  done  so,  we  arrive  at  a  different  

conclusion and, therefore, take the view that the High Court  

was not justified in reversing the acquittal of the accused-

appellant Prem Singh.  We, therefore, set aside the order of  

the High Court insofar as the present appellant is concerned  

and restore the order of acquittal passed by the learned Trial  

Court.   The  appeal  is  consequently  allowed.   If    the  

appellant  is  presently  in  custody  he be released

forthwith unless his custody is required in connection with  

any other case.

………………………………………CJI.                                        [P. SATHASIVAM]                     

…………………………………………J.                                              [RANJANA PRAKASH  

DESAI]                     

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…………………………………………J.                                     [RANJAN GOGOI]                     

NEW DELHI SEPTEMBER 2, 2013

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ITEM NO.1-B      COURT No.14        Section IIB  (For Judgment)                                   

          S U P R E M E   C O U R T   O F   I N D I                       RECORD OF PROCEEDINGS

                  CRIMINAL APPEAL No.925 OF 2009

Prem Singh           Appellant(s)

   Versus

State of Haryana                      Respondent(s)

DATE 02/09/2013       This matter was called                       on for pronouncement of judgment today.  

For Appellant(s)    Mr. D.B. Goswami, Adv.         Mr. K.H. Nobib Singh, Adv.

For Respondent(s)    Mr. Suryanarayana Singh, Adv.         Ms. Pragati Neekhra, Adv.

    Hon'ble Mr. Justice Ranjan Gogoi  pronounced  the judgment of the Bench comprising Hon'ble the  Chief Justice, Hon'ble Mrs. Justice Ranjana Prakash  Desai and His Lordship.

The appeal is allowed.  If the appellant is  presently  in  custody  he  be  released  forthwith  unless his custody is required in connection with  any other case.

 (Usha Bhardwaj)                (Usha Sharma)      (AR-cum-PS)                        (Court Master)   

      [Signed reportable judgment is placed on the file ]