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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1466 OF 2012

Sobaran Singh & Ors. .. Appellant(s)  versus

State of M.P. ..          Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

1. This appeal is preferred against the judgment dated  

16.3.2012 passed by the High Court of Madhya Pradesh  

Bench at Gwalior in Criminal Appeal No.353 of 2004.

2. The appellants herein are accused nos.1 to 3 in the  

case  in  Sessions  Trial  No.8/97,  on  the  file  of  Additional  

Sessions Judge, Gohad, District-Bhind (M.P.) and they were  

tried for  the offence punishable under Section 302 read  

with Section 34 IPC and the Trial Court convicted them for

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the  said  offence  and  sentenced  each  one  of  them  to  

undergo imprisonment for life and to pay a fine of Rs.500/-,  

in  default  to  undergo  Rigorous  Imprisonment  for  one  

month.

3. Challenging  the  conviction  and  sentence,  the  

accused  preferred  appeal  in  Criminal  Appeal  No.353  of  

2004 in the High Court and the same came to be dismissed  

by  the  impugned  judgment  and  that  is  now  under  

challenge in this appeal.

4. Briefly, the case of the prosecution is as follows :   

 PW5  Satyendra  Singh,  PW16  Brijendra  Singh  and  

deceased  Narendra  Singh  are  sons  of  PW7  Hanumant  

Singh.   PW6  Uday  Singh  and  PW10  Om  Prakash  are  

brothers  of  PW7 Hanumant  Singh.   On 6.9.1994  at  8.00  

a.m. PW5 Satyendra Singh and PW16 Brijendra Singh had  

gone to attend call of nature in the drain (Nalah) and they  

heard the sound of weeping and alarm raised by PW10 Om  

Prakash and they went there and saw Narendra lying on the  

ground and accused no.3 Sardar Khan put his knee on his  

chest  after   holding  his  hands  tight  and  accused  no.1

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Sobaran Singh and accused no.2 Suraj Singh tied his neck  

with a muffler (Safee) and accused no.1 Sobaran Singh was  

armed with a 12-bore gun and due to fear, they did not go  

near Narendra and in the meanwhile, PW6 Uday Singh and  

PW11 Vishwanath Sharma also rushed to the spot and on  

seeing them, accused nos.1 to 3 ran away.   They found  

Narendra alive with injuries on the neck,  chest and right  

knee and they carried him to the tube-well and thereafter,  

put him on the tractor-trolley and drove him to the hospital  

at Mau where he was declared dead by the Doctor.  PW14  

Dr. O.P. Tengar conducted the post-mortem at 12.30 p.m.  

on  6.9.1994  over  the  body  of  Narendra  and  found  the  

following :

(i) Abrasion admeasuring 3.0 cm x 1.0 cm on calf  muscle of right leg;

(ii)  Abrasion multiple in number size varies from  2.5”  to  3.0”  in  length and linear  in  width  over  right  side of  neck 2” below the ear lobule and  2.2” above the clavicle;

(iii) Abrasion 2 in number size 2.2”, 2.0” x linear just  over the cricoids cartilage;

(iv) Contusion 1.5” x 1.0” on the middle sternum.

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On dissection of the body, he found contusion on sternum  

and  ecchymosed  underneath  the  contusion  (rupture  of  

small  capillaries  and  ventricles)  with  tracheal  rings  and  

cricoids  cartilage  fractured.   Pharynx  and  larynx  were  

congested.  He expressed opinion that death was caused  

due to strangulation (Asphyxia), 4-6 hours prior to autopsy  

and issued Exh.P16 post-mortem report.  Thereafter, PW6  

Uday  Singh  went  to  Mau  Police  Station  and  lodged  a  

report, which was registered in the shape of Marg, under  

Section  174  CrPC  by  Assistant  Sub-Inspector  of  Police  

Balram  Singh.   During  the  investigation  of  Marg,  

statements of the witnesses were recorded.  On 7.8.1995,  

PW9 Assistant Sub-Inspector Ram Naresh Singh Kushwah  

registered  a  case  in  Crime  No.76/1995  against  accused  

nos.1 to 3 for the alleged offence under Section 302 read  

with  Section  34  IPC  and  prepared  Exh.P13  FIR.   During  

investigation of  the case,  witnesses were examined and  

final report was filed.  Charge under Section 302 IPC was  

framed against accused nos.1 to 3 and they were found  

guilty  and  were  sentenced  as  narrated  above  and  the  

appeal  preferred  by  them  was  dismissed  by  the  High

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Court.   Challenging the same,  accused nos.1 to  3  have  

preferred this appeal.   

5. The  learned  counsel  for  the  appellants  contended  

that  the  Marg  Intimation  Report  shows  that  the  

complainant had only a suspicion against the accused and  

he has not stated about their involvement in the crime and  

the accused have been convicted merely on the evidence  

of the informant and other eye witnesses, who are none  

else,  but  the  family  members  of  the  deceased,  having  

enmity  against  the  accused  and  the  First  Information  

Report came to be registered after nearly a year from the  

date of occurrence and on deliberation and afterthought,  

the  statements  of  the  material  witnesses  have  been  

recorded  falsely  implicating  the  accused  and  there  are  

embellishment  and  material  contradictions  in  the  

statements of the witnesses and the investigation is biased  

and tainted and the prosecution has failed to prove the  

charge against the accused persons and the High Court fell  

in  error  while  confirming the conviction imposed by the

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Trial Court and the impugned judgment is liable to be set  

aside.

6. Per contra,  the learned counsel  for  the respondent  

State  contended  that  the  courts  below,  relying  on  the  

testimonies  of  the  ocular  witnesses  have  found  the  

accused guilty of the offence charged and the conviction  

and sentence imposed are sustainable and does not call  

for any interference.

7. Narendra died of Homicidal violence is sought to be  

proved  by  testimony  of  the  post-mortem  Doctor  and  

opinion  of  the  Forensic  Science  Expert.   PW14  Dr.  O.P.  

Tengar conducted autopsy on the body of Narendra and  

found abrasions multiple in number with varying size over  

the right side of the neck and on dissection of the body,  

contusion on sternum and ecchymosed underneath with  

tracheal rings and cricoids cartilage fractured and pharynx  

and larynx congested.  In his post-mortem report, he has  

opined  that  the  death  was  caused  due  to  strangulation  

(Asphyxia), 4-6 hours prior to autopsy.

8. PW15 Dr.  Ashok Sharma,  Junior  Forensic  Specialist  

has testified that he perused the post-mortem report, the

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Case Diary and all the materials collected and was of the  

view that there was no scientific basis to disagree with the  

opinion of the Autopsy Surgeon.   Exh.P18 is  the written  

opinion  expressed  by  him.   Accepting  the  medical  

evidence  it  is  clear  that  Narendra  died  of  Asphyxia  by  

strangulation.

9. The prosecution case is that accused nos.1 to 3 in  

furtherance  of  their  common  intention  committed  the  

murder of  Narendra by strangulating him with a muffler  

(Safee)  and  to  prove  the  same,  they  examined  PW5  

Satyendra  Singh,  PW6  Uday  Singh,  PW10  Om  Prakash,  

PW11 Vishwanath Sharma and PW16 Brijendra  Singh as  

having witnessed the occurrence.  PW10 Om Prakash and  

PW11 Vishwanath Sharma did not support the case of the  

prosecution in full and were treated as hostile.  Two among  

the remaining ocular witnesses are brothers of deceased  

Narendra.

10. PW5 Satyendra Singh and PW16 Brijendra Singh have  

testified that on 6.9.1994 at 8.00 a.m. they had gone to  

Nalah to attend call of nature and they heard the sound of  

weeping and the alarm raised by PW10 Om Prakash and

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went there and found Narendra lying on the ground and  

accused no.3 Sardar  Khan put his  knee on the chest  of  

Narendra and holding his  hands tight  and accused no.1  

Sobaran Singh and accused no.2 Suraj Singh pressing the  

neck of Narendra by tying a muffler (Safee) and accused  

no.1 Sobaran Singh was armed with a 12-bore gun and due  

to fear, they did not go near and in the meanwhile, PW6  

Uday Singh and PW11 Vishwanath Sharma rushed to the  

spot and on seeing them, the accused left the place and  

they  took  injured  Narendra  to  the  hospital  at  Mau  in  a  

tractor-trolley, where he was declared dead.

11. Immediately  after  the  occurrence,  during  Marg  

investigation, PW5 Satyendra Singh was examined and in  

the said statement, he has stated that he was ploughing  

his Banjara field with tractor on 6.9.1994 and his uncle Om  

Prakash came running to his field and informed him about  

the death of Narendra and this statement was put to PW5  

Satyendra Singh in the cross-examination and, of course,  

he has denied the same.  In this context it is also relevant  

to point out that, after registration of the First Information  

Report  on  10.8.1995,  the  statement  of  Satyendra  Singh

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was recorded by the Investigation Officer, wherein, for the  

first  time,  he  has  stated  about  having  witnessed  the  

occurrence.

12. In  the  Marg  investigation,  Brijendra  Singh was  not  

examined and he was examined only after registration of  

the  FIR  on  10.8.1995,  which  is  almost  a  year  after  the  

occurrence.  Though both the above witnesses claimed to  

have  seen  the  occurrence,  during  which  the  accused  

attacked Narendra resulting in  his  death,  they have not  

lodged a complaint in the police station and had not taken  

immediate  steps  for  the  arrest  of  the  accused.   Their  

testimonies do not inspire confidence and conduct belies  

their version.

13. It  is  the  testimony  of   PW6  Uday  Singh  that  on  

6.9.1994 at about 8.00 a.m. he went to the tube-well and  

met Vishwanath Sharma and they heard the alarm raised  

by PW10 Om Prakash and they rushed there and he saw  

from a distance that  Narendra lying on the ground with  

accused  no.3  Sardar  Khan  armed  with  a  12-bore  gun  

sitting on his chest after holding both his hands tight and  

accused no.1 Sobaran Singh and accused no.2 Suraj Singh

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pressing the neck of Narendra by trying a muffler and PW5  

Satyendra Singh and PW16 Brijendra Singh also reached  

there and on seeing them, all the accused ran away and  

they  took  injured  Narendra  in  the  tractor-trolley  to  the  

hospital where he was declared dead by the doctor and he  

went to police station and lodged Exh.D1 Complaint.  In his  

complaint  PW6  Uday  Singh  has  stated  that  on  the  

occurrence day around 8.00 a.m. he went from his house  

for grazing the cattle and around 9.00 a.m. his brother Om  

Prakash told him that Narendra is lying unconscious at the  

Har and thereafter, he, PW11 Vishwanath Sharma and PW5  

Satyendra  Singh  went  to  Har  and  saw  Narendra  lying  

unconscious on the ground and a safee was there around  

his neck and there were red coloured marks on the chest  

and they took him in the tractor to the hospital at Mau,  

where he was declared dead and he came to the police  

station for filing the report and he has doubt on accused  

no.1 Sobaran Singh and accused no.3 Sardar Khan.  In the  

Marg Investigation, his statement was recorded, in which  

the same version has been told by him.  As already seen,  

about  11  months  after  the  occurrence,  the  First

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Information  Report  came to  be  registered  on  10.8.1995  

and the statement of Uday Singh was recorded and in that  

statement, for the first time, Uday Singh has come out with  

the  version  that  he  witnessed  the  attack  made  by  the  

accused on Narendra, which resulted in death.  If really,  

Uday  Singh  had  seen  the  attack  made  by  the  accused  

persons on Narendra during the occurrence, he must have  

stated so in his complaint given before the police station  

implicating the accused.  On the other hand, Uday Singh  

has  only  expressed  his  suspicion  on  accused  no.1  and  

accused no.3 in his complaint and has not whispered about  

witnessing the occurrence for a period of 11 months.

14. Exh.D2 is the statement of PW6 Uday Singh given on  

6.9.1994 to the police, wherein, he has stated that around  

9.00 a.m.  on the occurrence day,  his  brother  PW10 Om  

Prakash told him at the tube-well  that Narendra is  lying  

unconscious near the drain (Nalah) and he and his nephew  

Satyendra and Vishwanath Sharma went to the drain and  

found Narendra lying unconscious with injuries and there  

was safee around his neck and they took him in a tractor-

trolley to the hospital at Mau where he was declared dead

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and  he  has  doubt  on  accused  no.1  Sobaran  Singh  and  

accused no.3 Sardar Khan as the dispute is going on with  

them.  During cross-examination, the said statement was  

put to PW6 Uday Singh and he simply denied it and stated  

that he informed the police about the accused attacking  

Narendra.  In short, the testimony of PW6 Uday Singh does  

not inspire confidence and no credence can be given to it.  

15. The complainant PW10 Om Prakash has testified that  

on 6.9.1994 at 8.00 a.m. he took buffaloes for grazing to  

Banjara  field  and  saw  the  accused  persons  beating  his  

nephew  Narendra  and  he  cried  and  thereafter,  PW5  

Satyendra  Singh,  PW6  Uday  Singh  and  PW16  Brijendra  

Singh came there and the accused fled away and they took  

injured  Narendra  to  the  hospital  at  Mau  where  he  was  

pronounced  dead.   It  is  his  further  testimony,  in  

examination-in-chief  that  he  could  not  see  by  which  

weapon the accused persons were beating Narendra and  

due to the impairment of vision, he could not say whether  

the signatures found in the spot map and seizure memo  

were  that  of  his  and  he  was  treated  as  hostile  by  the  

prosecution.

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16. In  the  cross-examination,  PW10  Om  Prakash  

admitted that he was examined by police on the date of  

occurrence  itself,  namely  6.9.1994,  and  the  said  Marg  

diary statement  is  Exh.D/2-A,  and he has stated therein  

that on the occurrence day in the morning Narendra took  

buffaloes to Banjara wale Har and after sometime, he went  

with his buffaloes and saw Narendra lying in the grass with  

white liquid coming from mouth and nose and he saw at a  

distance that accused no.2 Suraj Singh with a 12-bore gun,  

accused no.3 Sardar Khan and another person, who could  

not be identified, going down by crossing the drain (Nalah)  

and  he  ran  to  the  tube-well  and  informed  the  same to  

others and he along with PW5 Satyendra Singh, PW6 Uday  

Singh  and  PW11  Vishwanath  Sharma  went  to  the  

occurrence  place  and  found  injured  Narendra  alive  and  

they  took  him  to  the  hospital  at  Mau,  where  he  was  

declared dead and he has doubt on accused nos.1 and 3  

about  their  involvement  in  the death of  Narendra.   The  

above version is the earliest in point of time wherein, he  

has not stated about the attack made by the assailants on

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Narendra.  Moreover, he did not support the prosecution  

case in full and was declared as hostile.

17. PW11 Vishwanath Sharma is an independent witness  

and he was staying in the tube-well of PW10 Om Prakash  

on 6.9.1994 and according  to  him,  he  heard  the  cry  of  

PW10 Om Prakash and he along with PW5 Satyendra Singh  

and PW6 Uday Singh ran there and saw Narendra lying  

seriously injured and saw the accused proceeding towards  

village from Nalah and they took injured Narendra to the  

hospital  in  the tractor-trolley and he was dead by then.  

This witness was also treated as hostile by the prosecution  

and his testimony does not help the prosecution case in  

any way.  

18. The investigation in this  case is  slip-shod.   Balram  

Singh, Assistant Sub-Inspector of Mau Police Station, who  

registered  the  Marg  under  Section  174  CrPC  was  not  

examined in the trial.  No explanation was offered by the  

prosecution for his non-examination.  PW12 Bharat Singh  

Sikarwar, who is the station in-charge, has admitted that  

during Marg enquiry he could not ascertain the names of  

culprits  nor  could  register  the  crime.   In  fact,  at  the

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instance of the higher police authority, the FIR came to be  

registered  against  the  accused  on  10.8.1995,  after  a  

period of 11 months from the date of occurrence and the  

statements were recorded on 10.8.1995 and only in those  

statements, for the first time, PWs 5, 6, 10, 11 and 16 have  

stated  that  they  saw  the  accused  persons  attacking  

Narendra  during  the  occurrence.   The  Marg  Intimation  

Report,  which  was  recorded,  was  neither  exhibited  nor  

proved  by  prosecution  in  the  trial.   The  Investigation  

Officer  Santosh  Singh  Gaur,  who  conducted  part  of  

investigation did not testify in the trial.  The High Court has  

elaborately  dealt  with  the  said  omissions  in  paragraph  

nos.19 and 25 of the judgment and proceeded to observe  

that investigation agency cannot be permitted to conduct  

investigation  in  a  tainted  and  biased  manner  and  

concludes that the investigation was defective and tainted  

and  the  defective  investigation  by  itself  cannot  be  a  

ground for acquittal.                          19. Our  independent  analysis  of  the  evidence  on  the  

record coupled with the infirmities which we have noticed  

above has created an impression on our minds, that the

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prosecution has not been able to bring home guilt to the  

appellants  beyond a  reasonable  doubt.   The High Court  

even after  noticing the infirmities,  in  our  opinion,  fell  in  

error in confirming the conviction of the appellants.  The  

reasons given by the High Court do not commend to us to  

sustain  the  conviction  and  sentence.  They  are  neither  

sufficient nor adequate or cogent much less compelling to  

uphold the impugned judgment.

20. As a result of our above discussion, we hold that the  

case against the appellants has not been proved beyond a  

reasonable doubt and they are entitled to benefit of doubt.  

Their appeal consequently succeed and is allowed and the  

conviction and sentence imposed on them are set aside  

and they shall be set at liberty forthwith, if not required in  

any other case.

…………………………….J. (T.S. Thakur)

…………………………….J. (V. Gopala Gowda)

……………………………J. (C. Nagappan)

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New Delhi; July  7, 2014